Note: This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

In early January 2019, Bell Canada caught the media spotlight over its “tailored marketing program”. The program will collect massive amounts of personal information, including “Internet browsing, streaming, TV viewing, location information, wireless and household calling patterns, app usage and the account information”. Bell’s background materials explain that “advertising is a reality” and that customers who opt into the program will see ads that are more relevant to their needs or interests.Bell promises that the information will not be shared with third party advertisers; instead it will enable Bell to offer those advertisers the ability to target ads to finely tuned categories of consumers. Once consumers opt in, their consent is presumed for any new services that they add to their account.

This is not the first time Bell has sought to collect vast amounts of data for targeted advertising purposes. In 2015, it terminated its short-lived and controversial “Relevant Ads” program after an investigation initiated by the Privacy Commissioner of Canada found that the “opt out” consent model chosen by Bell was inappropriate given the nature, volume and sensitivity of the information collected. Nevertheless, the Commissioner’s findings acknowledged that “Bell’s objective of maximizing advertising revenue while improving the online experience of customers was a legitimate business objective.”

Bell’s new tailored marketing program is based on “opt in” consent, meaning that consumers must choose to participate and are not automatically enrolled. This change and the OPC’s apparent acceptance of the legitimacy of targeted advertising programs in 2015 suggest that Bell may have brought its scheme within the parameters of PIPEDA. Yet media coverage of the new tailored ads program generated public pushback, suggesting that the privacy ground has shifted since 2015.

The rise of big data analytics and the stunning recent growth of artificial intelligence have sharply changed the commercial value of data, its potential uses, and the risks it may pose to individuals and communities. After the Cambridge Analytica scandal, there is also much greater awareness of the harms that can flow from consumer profiling and targeting. While conventional privacy risks of massive personal data collection remain (including the risk of data breaches, and enhanced surveillance), there are new risks that impact not just privacy but consumer choice, autonomy, and equality. Data misuse may also have broader impacts than just on individuals; such impacts may include group-based discrimination, and the kind of societal manipulation and disruption evidenced by the Cambridge Analytica scandal. It is not surprising, then, that both the goals and potential harms of targeted advertising may need rethinking; along with the nature and scope of data on which they rely.

The growth of digital and online services has also led to individuals effectively losing control over their personal information. There are too many privacy policies, they are too long and often obscure, products and services are needed on the fly and with little time to reflect, and most policies are ‘take-it-or-leave-it”. A growing number of voices are suggesting that consumers should have more control over their personal information, including the ability to benefit from its growing commercial value. They argue that companies that offer paid services (such as Bell) should offer rebates in exchange for the collection or use of personal data that goes beyond what is needed for basic service provision. No doubt, such advocates would be dismayed by Bell’s quid pro quo for its collection of massive amounts of detailed and often sensitive personal information: “more relevant ads”. Yet money-for-data schemes raise troubling issues, including the possibility that they could make privacy something that only the well-heeled can afford.

Another approach has been to call for reform of the sadly outdated Personal Information Protection and Electronic Documents Act. Proposals include giving the Privacy Commissioner enhanced enforcement powers, and creating ‘no go zones’ for certain types of information collection or uses. There is also interest in creating new rights such as the right to erasure, data portability, and rights to explanations of automated processing. PIPEDA reform, however, remains a mirage shimmering on the legislative horizon.

Meanwhile, the Privacy Commissioner has been working hard to squeeze the most out of PIPEDA. Among other measures, he has released new Guidelines for Obtaining Meaningful Consent, which took effect on January 1, 2019. These guidelines include a list of “must dos” and “should dos” to guide companies in obtaining adequate consent

While Bell checks off many of the ‘must do’ boxes with its new program, the Guidelines indicate that “risks of harm and other consequences” of data collection must be made clear to consumers. These risks – which are not detailed in the FAQs related to the program – obviously include the risk of data breach. The collected data may also be of interest to law enforcement, and presumably it would be handed over to police with a warrant. A more complex risk relates to the fact that internet, phone and viewing services are often shared within a household (families or roommates) and targeted ads based on viewing/surfing/location could result in the disclosure of sensitive personal information to other members of the household.

Massive data collection, profiling and targeting clearly raise issues that go well beyond simple debates over opt-in or opt-out consent. The privacy landscape is changing – both in terms of risks and responses. Those engaged in data collection would be well advised to be attentive to these changes.